PEOPLE v. SCOTT (1978)

Defendant was charged with (count I) attempted murder in violation of sections 187 and 664 of the Penal Code; (count II) attempted robbery in violation of sections 211 and 664 of the Penal Code; (count III) burglary with intent to commit robbery and murder, in violation of section 459 of the Penal Code; and (count IV) burglary with intent to commit murder, in violation of section 459 of the Penal Code. Allegations of the use of a firearm was alleged to as to all counts, and allegations of great bodily injury were made as to counts II, III and IV. On motion of the People, count IV was stricken; defendant was found guilty on counts I, II and III and the allegations of the use of firearms and of great bodily injury in connection with count III were found to be true. He was sentenced to state prison on count I, the sentences on counts II and III being stayed. After the finding of guilt, at the request of the People, the trial court made a further finding that defendant, under count I, was guilty of “attempted murder in the first degree.” Defendant has appealed; we affirm the judgment on count II; we reverse the judgment in all other respects.

The evidence is undisputed that defendant and a companion, after “casing” a store, returned a short time later, at which time defendant, without warning, shot the clerk in the chest and body and, as he ran away, shot him in the thigh. The two men then robbed the cash register and left. On this appeal, defendant urges one procedural error, attacks the sufficiency of the evidence on intent and also attacks the post-conviction finding as to guilt of “attempted murder in the first degree.”

I

All of the evidence was to the effect that defendant was, and for some time had been, an excessive drinker, consuming often several quarts of whiskey in one day. After his arrest he exhibited severe symptoms of delirium tremens; he was hospitalized for several days and then returned to jail where he was administered tranquilizing drugs used to alleviate that condition. When, on the second day of trial, he took the stand, he was highly agitated and it developed that he had not had his medication for the two previous days. A psychiatrist, who had examined him previously, testified that, although defendant was competent to understand the proceeding, his condition prevented him from concentrating or testifying meaningfully. The trial court recessed the trial for two days during which medication was resumed. When trial resumed, defendant appeared to be in a normal state and no complaint of his then condition was made.

It is here urged that the trial court should, instead of the temporary recess, have instituted a full dress hearing under section 1368 of the Penal Code. We disagree. Unlike the cases on which defendant relies, there was no showing that defendant's condition was other than temporary, correctable by the method used by the trial court.

II

Defendant was examined by a psychiatrist, the examination involving several hour-long interviews with defendant. That doctor testified that, based on defendant's history of alcoholism and his condition as observed at the interviews, defendant was incapable, at the time of the crime, of intending to take property or of intending to inflict great bodily injury; he was not allowed to testify as to his opinion as to defendant's capacity to form the intent to kill. In rebuttal, the People introduced the testimony of another psychiatrist, who had not examined defendant, but who based his opinion on reading reports and observations of defendant during the trial, to the effect that defendant did have that capacity.

(1) Relying on People v. Bassett (1968) 69 Cal.2d 122, 70 Cal.Rptr. 193, 443 P.2d 777, defendant contends that the trial court should not have relied on the rebuttal psychiatric testimony since it was insubstantial because that psychiatrist had made no personal examination of defendant. That contention overlooks the facts that the trial court had before it substantial evidence of defendant's conduct at the time of the crime and his conduct thereafter, including volunteered confessions. Even disregarding the rebuttal psychiatric testimony, the trial court had an adequate basis for rejecting the opinion of the defense psychiatrist. It follows that the finding of guilt on count II was not in error.

III

When the defense psychiatrist was being examined, the defense sought to secure his opinion as to the defendant's mental capacity to premeditate, deliberate or to materially and meaningfully reflect upon the nature of any act that he might soon engage in. The People objected, arguing as follows:

“MR. JONES: Your Honor, in the crime of attempted murder there are no degrees. The theory of prosecution, to use counsel's words, are that the—or is that the defendant did harbor the specific intent to take the life of another human being with malice aforethought. Neither felony murder nor premeditation, willful and deliberate, nor any of these other avenues by which we either get to first degree or get away from first degree apply to this case. It's simply whether or not the defendant was capable of and did harbor the specific intent to take another's life with malice aforethought. That's it.”

The objection was sustained and defense counsel, acquiescing in the ruling, then sought and secured testimony that defendant did not have the mental capacity to intend to kill.

However, when defendant was arraigned for sentence, the People, in support of their request that the trial court make a finding of degree on count I, totally shifted their position, stating:

“… And accordingly, I would request the Court at this time to make a factual finding that had the death of Mr. Ballard occurred, or resulted from the acts of this defendant as charged and proved, that the crime would have been murder in the first degree by application of Section 189 of the Penal Code, felony murder. All of the elements of that had been proved to the Court by its own verdict, and I make that request at this time.”

The finding that the offense in count I was attempted murder in the First Degree followed.

From that record, no conclusion is possible but that the trial court rejected any finding of a deliberate and premeditated intent to kill—a necessary element of classical first degree murder—but based its finding on the theory last proposed by the People—that of felony murder. We are cited to no authority, and know of none, that permits applying that doctrine to a case of attempt where the victim has not died. The purpose of the felony rule is to convict persons who, in the course of commission of the offenses listed in section 189 of the Penal Code, accidentally or negligently cause death, (People v. Washington (1965) 62 Cal.2d 777, 781, 144 Cal.Rptr. 442, 402 P.2d 130) and, in that case, the Supreme Court, at page 783, 44 Cal. Rptr. at page 446, 402 P.2d at page 134, cautioned against expanding the felony-murder rule to include cases “beyond any rational function that it [the felony-murder rule] is designed to serve.” In People v. Ireland (1969) 70 Cal.2d 522, 75 Cal.Rptr. 188, 450 P.2d 580 and in People v. Wilson (1969) 1 Cal.3d 431, 82 Cal.Rptr. 494, 462 P.2d 22, the Supreme Court held that the felony-murder rule could not be applied where the underlying felony (in those cases assault with a deadly weapon) was an integral part of the killing. In Ireland, the court said (at page 539, 75 Cal.Rptr. at page 198, 450 P.2d at page 590):

“To allow such use of the felony-murder rule would effectively preclude the jury from considering the issue of malice aforethought in all cases wherein homicide has been committed as a result of a felonious assault—a category which includes the great majority of all homicides. This kind of bootstrapping finds support neither in logic nor in law.”

Attempted murder is a specific intent crime, requiring proof that the defendant intended to kill. To permit that application of the doctrine of felony murder similarly precludes the trier of fact from addressing itself to the only material issues—did an intent to kill actually exist. It follows that, lacking any finding as to intent, and rejecting evidence directed to that issue, the trial court erred.

IV

Since count III charged that the burglary was committed with the intent both to rob and to kill, and the finding on that issue was general, we cannot say that the trial court did not rely on both charged intents. For the reasons above set forth, a finding as to intent to kill would be in error because of the rejection of the psychiatric testimony. The finding on count III cannot stand.

V

It necessarily follows that the supplementary finding, based on a use of the felony-murder rule, that the crime involved in count I was “attempted murder in the first degree,” cannot stand. Thus we need not, and do not, consider the other objections here made to that finding.

The judgment on count II is affirmed; the judgments on counts I and III, and the supplementary finding, are reversed.

KINGSLEY, Acting Presiding Justice.

JEFFERSON and ALARCON, JJ., concur.